Why The Death Penalty Is Unconstitutional

January 26, 1989|By Robert Gillmore.

Justice William Brennan was right: The 8th Amendment, which prohibits

``cruel and unusual punishments,`` disallows the death penalty for all murders.

When the court began to police the death penalty in 1972, Brennan wrote that punishment is ``cruel`` if it is ``excessive`` and ``excessive`` if it is ``unnecessary.`` Since anything the death penalty can do can be done-and often done better-by life imprisonment without parole, Brennan concluded that the death penalty was not only ``unnecessary`` but ``nothing more than the pointless infliction of suffering.``

The pointlessness of capital punishment is shown by studies that reveal that states without it have no more murders per capita than states that have the death penalty. In fact, studies turn up no evidence that death deters murders more than long prison sentences do.

Many murders are born of sudden rage. No sanction would deter them. Other murders are premeditated. But proponents of capital punishment would have us believe that, whenever a state repeals its death penalty, a local hitman smiles to himself and says: ``Hey! Now if I get caught I only have to spend the rest of my life in jail! Such a deal!``

The major premise of the pro-death argument-that life imprisonment is an ineffectual slap on the wrist and that only death has enough clout to deter murder-is absurd. Ask yourself what you might do if you felt like killing someone. Can you honestly say that the threat of spending the rest of your life in a cell wouldn`t deter you from murder?

If it were otherwise-if only death did what jail did not, if only the hangman struck terror in the hitman-then capital punishment would not only be permitted. It would be required. For on this issue, some liberals are wrong:

Life is not so ``sacred`` that the state can never take it. On the contrary, capital punishment requires a calculus of violence. If only death deterred, death would be justified because it, and only it, would take a guilty life to save innocent ones. In fact, in that case, not to take a guilty life would be to condemn the innocent to die.

But where death does not deter, where it merely takes life and does not save it, death is wanton.

Why, then, has the court not abolished the death penalty? Because other members of the court know that death does something jail does not: It extracts retribution. As Justice Potter Stewart wrote, revenge is constitutional because ``the instinct for retribution is part of the nature of man.``

Stewart was only half right. Revenge is an ``instinct.`` But, as Plato put it, it`s a ``passion`` that must be ruled by reason, not allowed to rule the administration of justice. Yet the proponents of revenge maintain that retribution gives society a chance to express its ``anger,`` its ``outrage.`` That`s true. But there are equally effective and much less costly ways to express outrage than by, literally, sacrificing a life to do it.

The advocates of revenge also object that the murderer ``deserves`` to die.

Wrong. The murderer deserves what all human beings deserve-his fundamental (some say ``natural``) right to life, the same right Thomas Jefferson referred to when he wrote ``life, liberty and the pursuit of happiness`` in the Declaration of Independence. We deserve to live simply because we`re human.

Life therefore can be taken away for only one reason: if it preserves the same right in someone who deserves it more. We can take away a murderer`s life only if it deters future murders.

The Supreme Court has ruled that ordinary laws will be upheld if they have a ``rational basis`` for existence. But the court has also held that laws that impinge a ``fundamental right`` such as free speech, privacy or other freedoms in the Bill of Rights would receive ``strict scrutiny`` and be upheld only if a state proves that they serve a ``compelling state interest.``

Because the right to be free from ``cruel and unusual punishments`` is found in the Bill of Rights, it is clearly fundamental. And because no state can articulate a ``rational basis`` for, let alone a ``compelling interest``